Marsy’s Law of Unintended Consequences

By Benita M. Dodd

It’s hard to fathom the depth of the pain and suffering of crime victims and families left behind. For Henry Nicholas, the experiences of his family after his sister was murdered inspired his mission to protect victims.

A student at the University of California, Santa Barbara, Marsalee “Marsy” Nicholas died after being shot in 1983 by her ex-boyfriend, Kerry Conley.

Marsy’s brother told The Los Angeles Times: “After the funeral service, we were driving home and stopped at a market so my mother could just run in and get a loaf of bread. And there in the checkout line was my sister’s murderer, glowering at her.”

He said the family was not told the killer had made bail; there was no obligation by the state to inform the family. Conley remained free on bail until he was convicted of second-degree murder in April 1985. Sentenced to 17 years to life, he died in prison in 2007.

Henry Nicholas, a billionaire, donated nearly $5 million toward his “Marsy’s Law” initiative for victims’ rights in California. The 2008 constitutional amendment gained nearly 54 percent voter approval. In 2009, he founded Marsy’s Law for All, whose goal is to add victims’ rights to all state constitutions and, eventually, to the U.S. Constitution.

Well-funded Lobbying Effort

Although the legislation varies, the campaign and message are similar in each state: a sophisticated, state-focused website, a well-funded lobbying effort, and crime victims and their relatives shepherded around the state and to the Legislature to share how the system has failed them. Just 15 states have victims’ rights set forth in their constitution, Marsy’s Law proponents point out.

Nicholas spent more than $5 million in Illinois, where legislators were first to vote to place a constitutional amendment on the November 2014 ballot. The 42-page Crime Victims’ Bill of Rights Amendment, approved by more than 78 percent of voters, took effect in August 2015. He gave his support and funds to campaigns in North Dakota ($2.5 million), South Dakota ($2 million) and Montana ($2.4 million).

No concerned voter opposes “victims’ rights.” In November 2016, “initiated” constitutional amendments passed in Montana (66 percent) North Dakota (62 percent) and South Dakota (60 percent). Just last month, Ohio’s initiated constitutional amendment won 82 percent approval. (In states with initiated amendments, a certain minimum number of voters must sign a petition to bring about a vote.)

Voters in Oklahoma and Nevada will consider legislatively approved constitutional amendments in 2018, and advocates are campaigning in several other states, including Georgia, where the House’s far-reaching proposed amendment went nowhere in 2016. That included an expanded (and costly for government) category of “victim,” a (time-consuming) right for victims to confer with the attorney for the government, and would have violated the Sixth Amendment right to face one’s accuser.

A less onerous 2017 proposal passed the Senate 50-4 and is in the House; if it passes in 2018, it will be put to voters in November. The proposal gives victims the right to “reasonable and accurate” notice of proceedings; to be present and heard at any public proceeding involving the crime, and to seek court intervention if they believe their rights are being violated.

Proceed Cautiously

Advocates for Marsy’s Law share emotional experiences as they search for closure. But emotions should not drive legislation, and especially not constitutional amendments. Lawmakers must proceed cautiously and question whether the Constitution is the appropriate place to embed a broad, expensive mandate.

Just last month, Montana’s Supreme Court struck down its amendment as unconstitutional. More important, the Montana Association of Counties was part of a group seeking to void that law, citing, among other burdens, the cost of more attorneys and support staff for victims and of detaining more people accused of crimes. In South Dakota, there’s conflict over the media’s First Amendment rights and victims’ privacy rights.

A constitutional amendment is no place to risk infringing the rights of someone accused of a crime. The accused have the presumption of innocence until convicted; their life and liberty are at stake. For many suffering victims and their surviving families, there’s a fine line between justice based on a court of law and vengeance based on the alleged wrongdoing. And sometimes, accusations are falsified by “victims.” It’s why anything that erodes the constitutional rights of the accused puts all Georgians at risk of unjust punishment.

Since 1995, Georgians have been protected by a Crime Victim’s Bill of Rights. Quoted in Patch news service, Georgia State Rep. Mandi Ballinger said, “As a former victims’ rights advocate in the District Attorney’s Office, I can tell you that Georgia has one of the strongest victims’ rights statutes in the country.” Further, the state has a Victim Information Program and metro counties participate in the VINELink victim information network.

Since 2011, Georgia legislators have made nationally recognized advances in criminal justice reforms, understanding that it’s time to get “smart on crime.” Part of being smart on crime is realizing that while law enforcement and its agencies fall short in some areas of the victim rights’ statute, that should be resolved with a targeted legislative remedy, not a constitutional amendment that quite possibly could undo years of progress.

Benita Dodd is vice president of the Georgia Public Policy Foundation, an independent, nonprofit think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.